SR (A Child), Re

Where allegations of child sexual abuse depend on interviews that materially depart from the Achieving Best Evidence guidance, the court must scrutinise the process and may need to give the resulting evidence very significantly reduced weight. A fact-finder must assess the child’s accounts as a whole. This includes inconsistencies, possible contamination by adults’ responses, and whether cultural practices may have caused misunderstanding.

An unsupported inference about a child’s sophistication cannot safely establish the reliability of an allegation. Although appellate courts ordinarily respect findings of fact, they must intervene where material defects in the evidential analysis render a finding unsafe.

Care proceedings concerning a seven-year-old boy were brought under the Children Act 1989. The statutory threshold had been accepted on agreed findings concerning the mother. The local authority nevertheless sought additional findings that the father had sexually assaulted the child.

At a fact-finding hearing, HH Judge Gordon-Saker upheld the allegations. The evidence consisted principally of accounts given by the child to his foster carer and social workers, and an audio-recorded police "Q and A session" which was not conducted as an Achieving Best Evidence interview. The father denied the allegations, while accepting that he had used a culturally customary phrase about eating his son’s penis.

The father appealed, contending that the judge had failed adequately to address defects in the investigation, inconsistencies and possible contamination of the child’s accounts, and the cultural evidence.

1. Appeal allowed. The finding that the father had sexually assaulted the child was unsafe and was set aside. The issue was remitted for retrial before a different judge if the local authority elected to pursue it.

2. The Achieving Best Evidence guidance is advisory rather than a rule of admissibility, but material departures from it may be decisive when evaluating evidence. The police conversation was not a planned or structured ABE interview. It was delayed, not video-recorded, lacked a free-narrative phase and did not establish the child’s understanding or the importance of telling the truth. These defects required the judge to reduce the weight attached to it very significantly, rather than merely to give it slightly different weight.

3. The judge had also failed to analyse material inconsistencies in the child’s descriptions, including whether the father had kissed, bitten or put the penis in his mouth, and the differing demonstrations of touching. She did not sufficiently address the risk that the foster carer’s reassuring but evaluative responses, or other unrecorded conversations, had contaminated the child’s account.

4. The unchallenged cultural evidence required careful consideration of whether the child’s original remarks had been misunderstood. The judge found that the allegations went beyond the cultural practice, but did not first examine whether the initial reports had been interpreted through an uninformed adult understanding of the language used.

5. The judge was also not entitled, without evidential support, to treat the child’s unusual focus and verbal clarity as an indicator of truthfulness. The critical question was whether the accounts reflected genuine memory or a mixture of experience and cues from others. Although appellate restraint in relation to findings of fact remained important, these cumulative errors compelled intervention.

• Court of Appeal (Civil Division) — by [2018] EWCA Civ 2738, allowed the father’s appeal, set aside the sexual-assault finding and remitted the issue for retrial before another judge if pursued.
• Family Court at Peterborough — HH Judge Gordon-Saker found the alleged sexual assault proved during care proceedings and refused the father permission to appeal.